America's Disillusionment with Joint Custody
- Where the Children are Chattel
By Lori
Rubenstein, JD, CPC
The State of California is typically on the cusp of new and innovative ideas in their laws and the attitude of the people. In California, as well as in other US States, custody of children is the domain of family law courts, courts that were developed to specialize in Divorce, Support, Custody, Guardianship (although these cases are often in probate courts) and Domestic Abuse.
The question this papers seeks to answer is how are these decisions made and furthermore, is trend of joint custody better for children. To answer these questions, we will look not only at California, but at outside psychological studies to explore the ramifications, if any.
How are custody decisions made? Every US State has a "BEST INTEREST" of the child standard. Each state takes various factors into consideration in making the decision. In California, the California Code makes clear that custody and visitation determinations are to be made from the standpoint of the child's best interest (consistent with the § 3020 policies.. [Ca Fam §§ 3011, 3020, 3040, 3041] The equities, feelings and desires of the contesting parties are only a factor to the extent they affect the child's best interest.
In making the "best interest" determination, the court can consider any "relevant" factors. [Ca Fam § 3011] The court "must look to all the circumstances bearing on the best interest of the minor child." While custody contestants, eg. parents, may view certain factors relevant, we must look at the factors the court has already deemed relevant to understand what the court takes into consideration. We find these in Ca Fam § 3011:
1. Child's Health, Safety, And Welfare: A "best interest" determination must take into account the child's health, safety and welfare.
2. History of Physical Abuse: The court must also consider any history of abuse by one parent or any other person seeking custody against the child, the person seeking custody, or the current spouse.
3. Certain violent crimes restrict custody or unconditional visitation awards
- Registered Sex Offender Or Child Abuse Conviction
- Child Conceived By Rape:
- First Degree Murder Of The Other Parent:
- History Of Drug And Alcohol Abuse:
4. Stability and Continuity Of Environment: Although not reduced to express statutory terms, a significant component of the "best interest" assessment is the policy goal of protecting a stable custody arrangement. "As we have repeatedly emphasized, the paramount need for continuity and stability in custody arrangements--and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker--weigh heavily in favor of maintaining ongoing custody arrangements." [Marriage of Burgess (1996) 13 Cal.4th 25, 32-33, 51 Cal.Rptr.2d 444, 449-450 (emphasis added); see Burchard v. Garay (1986) 42 Cal.3d 531, 538, 229 Cal.Rptr. 800, 804-805]
5. Separation of Siblings: California policy affords strong protection to sibling relationships. Absent compelling circumstances, such as extraordinary emotional, medical or educational need, an order separating siblings between custodial households ordinarily will be reversed as detrimental to the children's best interest. [Marriage of Williams (2001) 88 Cal.App.4th 808, 814-815, 105 Cal.Rptr.2d 923, 927-998]
6. Child's Wishes: The court must "consider" and give "due weight" to the wishes of children who are of "sufficient age and capacity to reason so as to form an intelligent preference as to custody."
So, with that being said, that the court must take certain relevant factors into consideration, the court then takes a huge leap by making a presumption that joint custody is in the best interest of a minor child. However, upon researching this subject, case studies are all over the place, and few studies ever conclude that joint custody is in the best interest of all/most children. Yet, all the legal factors above are basically applied to "refute" the presumption, although the law clearly states best interest. The statutes in California, as in other states where there is a presumption, are confusing and contradictory at best, and for children, they are harmful and detrimental at worse.
Thirty-five states plus the District of Columbia have statutes that explicitly authorize joint custody as a presumption or strong preference. Yet its interpretation by the family court or judges is often arbitrary and like California, there are a number of conflicting statutes, such as § 3080 which states there is a presumption of best interest, and within the statute saying where parents agree, and then §3081 says the court can order joint custody even though parents do not agree. Moreover, the law regarding child custody varies from state to state, leaving no uniform legal position regarding what is in the best interest of the child nor how that standard shall be applied. In California, Joint custody provisions can be found in Sections 3080 through Sections 3087.
Another confusing aspect of the joint custody debate, when it comes to California’s application of the presumption, is Ca Fam § 3040 (1) which is what I call the "friendly parent rule." It states that in making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent…" What this means is that if one parent does not want a frequent visitation schedule, there will be a bias against giving that person custody. This is where the real danger lies.
So, for example, if one parent sees that the child is not doing well when with the other parent,1 usually the non-dominant parent, for a long period of time, and tells the court that the other parent’s time should be limited or changed in a certain way, the court will actually look upon that parent as not having the child’s best interest at heart. The child him/herself has no advocate but his/her parent. However, this friendly parent provision is not in the listing of factors, but basically was inserted, in California, in a statute that provides a listing of preferential order of who is eligible to receive custody of children (eg. Parents before foster parents). Interestingly, this section (b) specifically states that this section does not give preference for joint custody, yet, parent’s who do not abide by friendly parent provisions could in fact lose full custody.
Most states recognize certain explanations as valid for setting aside the friendly parent standard, which include domestic violence, child abuse, addiction, dangerous driving, etc. Unfortunately, we have given up the recognition that there is, in most cases, a better parent, a primary caretaker, for the notion of a parent who seems more thoughtful to the court.
The law in California has changed a few times, with the sway of public opinion, lobbyists and dogmatic congress-people. Many can tell a story of how joint custody is better than sole custody, while many can likewise tell stories of how sole custody is better for the child than joint custody. This is exactly why the system we have in place, an over-crowded system where a judge who most likely will never meet the children, teachers, day care workers, or know the parents without legal advocates or under normal, non-stressful and artificial conditions such as being in court, are not in the best position to make such an important decision.
As a society, we ordinarily overlook an important factor, or way of looking at things, as compared to Australia for example, that deludes our respect for the needs of the children. Here, we talk all the time about the "rights" of the parents, but rarely of the rights of the children. Parents have a right to see their children, and to have a relationship with them, but they do not have the responsibility. Ask any parent who wants the other parent to visit, ask a parent whose children sit around and wait for an irresponsible parent to come and visit because the court tells them that they must be ready for the visit, and the other parent does not come. We allow that because the truth is, children are treated as chattel to be shared and divided.
Let’s review Australia’s Family Law Act
The Act makes clear that:
- both parents are responsible for the care and welfare of their children until the children reach 18
- arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.
See Section 61DA of the Act for the detail.
In deciding what is in the best interest of a child, the Act requires a court to take into account two tiers of considerations:
Primary considerations:
- the benefit to children of meaningful relationships with both parents
- the need to protect children from physical or psychological harm (from being subjected or exposed to abuse, neglect or family violence).
Additional considerations:
- the child’s views and factors that might affect those views, such as the child’s maturity and level of understanding
- the child’s relationship with each parent and other people, including grandparents and other relatives
- the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
- the likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives
- the practical difficulty and expense of a child spending time with and communicating with a parent
- each parent’s ability (and that of any other person) to provide for the child’s needs
- the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
- the right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right
- the attitude of each parent to the child and to the responsibilities of parenthood
- any family violence involving the child or a member of the child’s family
- any family violence order that applies to the child or a member of the child’s family, if:
- the order is a final order, or
- the making of the order was contested by a person
- whether it would be preferable to make the order that would be least likely to lead to further court applications and hearings in relation to the child, and
- any other fact or circumstance that the court thinks is relevant.
A court must consider the extent to which each parent has or has not previously met their parental responsibilities, in particular:
- taken the opportunity to:
- participate in decision-making about major long-term issues about the child
- spend time with the child
- communicate with the child, and has:
- met their obligations to maintain the child, and
- facilitated (or not) the other parent’s involvement in these aspects of the child’s life.
If the child’s parents have separated, a court must consider events and circumstances since the separation.
Now, you could see that there are many similarities between Australia and the California law; however, can you hear how the tone is different? Australia is concerned with obligations and responsibilities; taking into account wrongful actions on the part of the parents, including communication with the child, participation in decision making, and maturity and lifestyle.
What Happened to the Best Interest of the Children Standard?
What is in the best interest of the child? As written, this is a fabulous foundation for decision making, yet in reality, a pure flight of fancy. In other words, judges rarely, even with custody evaluators, have all the information they need to make sound and creative orders. Additionally, the decisions are almost always about parent’s rights, although that is never stated. Children are still treated as chattel, as the presumption language of joint custody in the majority of the states clearly indicates.
To presume that joint custody is in the best interest of children is to presume that both parents were equally involved in the children’s lives. This is not a fact of family life, at least here in the US. Even when both parent’s work, we know that in most families, one person is usually the primary caretaker. The person who decides what the children eat, wear, when they sleep, whether they can sleep at friend’s houses or go out with friends, when it is time to go to the doctor, when to give medicines, when to get the hair cut and who does the cutting, when the children need dental appointments, what books are read to them at night, whether they can watch certain TV shows, etc. To know what is truly best for children, we need to look at some of the studies, which I found to be all over the place. We are trying to fit families in a cookie cutter pattern, and frankly, they do not fit.
Dr. Judith Wallerstein is at the forefront of this research, having done the longest study of the effects of divorce. However, even her study, of children whose parents were divorced in the 70s and 80s, is difficult because most mothers, primary caretakers, did in fact get awarded custody. "The children... whose lives were governed by court orders or mediated parental arrangements all told me that they felt like second-class citizens who had lost the freedoms their peers took for granted. They say that as they grew older and craved independence, they had even less say, less control over their schedules and less power to determine when and where they could spend their time -- especially precious vacation time." -- Judith Wallerstein, in Unexpected Legacy (A Twenty-Five Year Landmark Study, Hyperion 2000, p 181-2.
In Wallerstein’s study, she was also told, "My parents got a divorce and I got a suitcase." What about the child’s stability? What about a child needing a home? Parents get to have a home, but the child does not have that as a right.
From the website, the www.lizlibrary.org she quoted numerous portions from The Unexpected Legacy of Divorce The 25 Year Landmark Study -- What She Really Said by Judith S. Wallerstein, Julia M. Lewis and Sandra Blakeslee (2000), from which I will quote in full and not extrapolate further:
"Judith Wallerstein frequently is claimed by fathers' rights advocates (citing to preliminary findings with Joan Kelly that they know have been superseded) to be a supporter of joint custody. That's a misrepresentation of her position, which is pro-child, nuanced and balanced. Quotes:
Judith Wallerstein and Tony Tanke: The focus should be on strengthening the post-adjustment of the custodial parent rather than creating legal provisions that favor frequent contact between the non-custodial parent and the child. All of our work shows the centrality of the well-functioning custodial parent-child relationship as the protective factor during the post divorce years. When the court intervenes in ways that disrupt the child's relationship with the custodial parent, serious psychological harm may occur to the child as well as the parent."
Johnston, Wallerstein and Blakeslee: Joint custody and frequent visitation exchanges have been demonstrated not to further the children's post-divorce adjustment except in cases in which both parents support such a plan, and in fact, may lead to markedly worse outcomes for cases in which the tensions between parents remain high.
Wallerstein: I advocate creating a post-divorce environment that is as close as possible to life in a good intact home. The child who is happily attached to one parent is able to deal more easily and happily with the other parent.
Wallerstein: I can only conclude that joint custody as a legal presumption for all children is a misguided policy... children, especially girls, do very poorly in court ordered joint custody situations. Although our legal system is mandated to protect the best interests of the children, it often makes life harder for them.
Wallerstein: Generally, little girls are protected by close-mother daughter relationships that develop after divorce....it is the relationship that matters.
Wallerstein: The quality of the child's relationship to a nurturing parent has been established to be among the best predictors of their thriving and their ability to recover from marital conflict or parental psychopathology (Furstenburg Cherlin 1991, Johnston and Kline) Furthermore, children's post-divorce adjustment is tied to the overall quality of life in the custodial home including the creation of a nurturing, protective milieu.
Wallerstein: These needs which have been identified are accentuated for children who have experienced profound and chronic emotional distress or trauma, where the strong bond to a critical caretaker has been shown to be critical for their recovery. (Heller 1999) Graham Berman 1998).
Wallerstein: They spend hours fretting over upcoming conflicts in their schedules; this too is detrimental to their development. I have found that their anger in being "pushed around" is often long-lasting. As in intact families, parents should pay close attention to how much stress their children are experiencing.
Wallerstein: Sadly, for all children in this study, court-ordered visitation failed in its very important purpose of bringing father and children together in a renewed loving relationship. The goal was laudable; however a schedule that was never shaped to fit their needs sabotaged this ideal. In good, intact families, children are not ordered to spend major blocks of time with one parent or another on a rigid schedule in which they have no say. The father, by relying on his "rights" lost his child. How foolish we are to think that we can legislate the human heart. Our intervention is not only misguided, but may have harmed an entire generation of young people. How many are still reacting to feelings of having been bullied by their fathers and made to feel powerless? (Page 181)
Wallerstein: The American legal system is under the misguided impression that its decisions are geared toward safeguarding children, but I have rarely met a child who has felt protected by this system. The children in this study whose lives were governed by court orders all told me that they felt like second class citizens who had lost the freedoms their peers took for granted. Our court system is strangely at odds with what we experience in our own families; most households welcome input from their children. But the "court created child" is a passive vessel, like a rag doll that stays put in whatever position it is placed. The real children in this study did not remain silent about the system's unfairness. They complained about being forced by the court or by a parent backed by the court. The system is flawed. For starters, as children mature, they want their concerns heard. They don't want to be bullied. Children want a say in where they spend their summers and vacations... a time for pursuing emerging interests and spending summers with friends at home or at camp. Yet we continue to penalize children of divorce by insisting the parent's legal rights to their children will be protected.( Page 184)
Wallerstein: There are powerful lessons in these findings. When they reached adulthood, all of the children in this study who had been court ordered to visit a parent on a rigid schedule grew up angry. Most grew up very angry at the parent they were ordered to visit. All rejected the parent they were forced to visit as they got older. (Page 184)
Wallerstein: In good families, children are not ordered to spend major blocks of time with one parent or another on a rigid schedule on which they have no say; why should the children of divorce be treated with less consideration. (Page 180)
Wallerstein: Children who have been forced into court-ordered custody and visitation have grown up very angry and resentful of the parent who forced these decisions... Sadly for all children involved in this study, court-ordered visiting failed in its very important purpose in bringing father and children together in a renewed loving relationship. By relying on "his rights" the father lost her." (Page 181)
Wallerstein: One in four children in this study started using drugs and alcohol before their 14th birthday. Early sex was common in girls of divorced families. Some combine promiscuity with drugs and drinking as a way to deaden their feelings. Others are anxious to turn the tables on men; these young women were motivated by a frantic vengeance against men that was startling in its passion. The father's standards made a great difference between a woman's expectation of herself and of the men in her life. The experience of this small, select group called attention to the father daughter relationship in which the young woman feels cherished and valued. These bonds exert a powerful influence on a young woman's adult choices and their relationships with men. (Page 189)
Wallerstein: Traumatized children need to be with a parent who is able to "acknowledge, recognize and bear witness to a child's pain. Joint custody imposed over a mother's objections can interfere with the flourishing of healthy mother-daughter relationships. A strong-mother-child relationship is an important contributor to the resilience of mothers of battered women (Jaffe and Geffner), (Jaffe Hurley and Wolf)
Wallerstein: So what makes for a successful custody arrangement? In a nutshell, it depends upon the child, the parents, and how the parents treat each other. It matters whether the arrangements accurately reflect the needs and wishes of the child. Children who are ordered to traverse battlegrounds between warring parents show serious symptoms which affect their physical and mental health. The research findings on how seriously troubled these children are and how quickly their adjustment deteriorates are very powerful."
Wallerstein: The bottom line is that our studies show that the legal form of custody is not what matters, in the child's welfare. Nor is there any study that shows the amount of time spent with a parent is relevant to their psychological adjustment. No model of custody, no axiom of timesharing, no principle of greater access governs how well children do after their parents divorce. What matters most is the mental health of the parents, the quality of the parent child relationships, the degree of open anger between the parents, and the age, temperament and flexibility of the child. (Page 215)
Wallerstein: About 20% of families nationally choose joint custody. Joint custody refers to both parents having significant physical time with their children. However, joint custody does not necessarily mean equal timesharing. Everywhere I go, worried parents, mental health professionals and teachers ask "Is joint custody good for kids?" People want answers that will either reassure them that joint custody is helpful of provide the grounds for changing social policy back in favor of sole custody. Parents know that joint custody is an unproven way of bringing up children. (Page 212)
Wallerstein: The chief job of a school age child is to learn at school and to develop socially. For this reason, the child's personality and temperament need to be carefully considered. People are born with different neurological hardwiring which stays with us throughout our lives... I can only conclude that joint custody as a legal presumption for all children is a misguided policy. Although our legal system is mandated to act in the best interests of the children, it often makes life harder for them. The court emphasis on finding policies which suit all children is unrealistic and detrimental to children. We need to develop procedures that allow children to discuss their needs and wishes before visiting arrangements are made. (Page 219)
Wallerstein: School age children in intact families spend most of their time with friends and playmates in school and on the playground, not in the company of parents. Adolescents in intact families are encouraged to participate in planning their own activities. Children whose schedules are dictated by rigid court orders complain bitterly that they are treated like second-class citizens. Compared to their peers from intact homes, they have fewer rights, privileges and opportunities for social relationships and activities which could enrich their lives. (Page 313)."
Joan Zorza (Summer 1995 Family Law Quarterly, "Recognizing and Protecting the Privacy and Confidentiality Needs of Battered Women") summarized:
"Joint custody awards do not improve the lot of children. In fact, most children in court-imposed joint custody (not just those with abusive fathers) do poorly and are more depressed and disturbed than children in sole custody, even when the parents genuinely choose joint custody. Furthermore, joint custody results in lower child support awards, which fathers are no more likely to pay than awards made when the mother has sole custody. Joint custody does not even result in the father spending any more time with his children."
"New research from a longitudinal study by Carol Smart of the Care, Values and the Future of Welfare (Cava) research programme at the University of Leeds asked children what it actually feels like to be shared. Smart observes: "Even where children had good relationships with both their parents, and where they felt that shared residence was 'a good thing', there were costs for them. They looked forward to a time when they could stop living like nomads."
"Research by Liz Trinder at the University of East Anglia confirms this view. She found that, even in the most harmonious post-divorce families, the children tended to refer to one place as "home" and speak of visiting the other parent. Both researchers found that children are happiest where it is clear that their needs, rather than the needs of their parents, take priority. "If they realised that each parent wanted 50% of them because they could not tolerate the idea that the other parent had more, they did not feel loved so much as like a possession to be fought over," explains Smart.
Joint Custody Just Does Not Work. Research from the California Judicial Council, 2000 was done to look at the results of mediated "parenting plans." As a lifestyle, it found that joint custody just does not work. Its only arguable accomplishment probably is to ultimately send more children into the sole custody of their fathers than otherwise would occur. (A primary reason fathers' rights groups push for it.) It's unlikely that any group, children, mothers, or fathers, benefits from this phenomenon -- other than, of course, custody mediators, evaluators, and parenting coordinators, who make more money the more problematic and unworkable a "parenting plan."
What happened to basic common sense anyway? A couple breaks up because they can not get along, because someone cheated and tore out the heart of their mate, someone abused their partner, someone spent all the money, gambled it away, someone became addicted to drugs or alcohol and make their lives unmanageable, someone lost a job or may refused to work and support the family, someone developed a mental health issue, someone became addicted to pornography, someone just fell out of love, someone wanted a new life, a new experience. Whatever the reason, the couple already decided they could not stay together for the sake of their children, yet, the court would force couples to make joint decisions, be flexible with each other, put aside their own hurts, equally share their children, even if one parent was pretty much an absentee parent, and ORDER them to get along, set aside their hurt, anger, resentment and fears, without providing any long-term counseling, support or coaching for this family, which by now is probably suffering sever financial stress having to somehow support two households. To add even more heat to the fire, giving 50/50 custody in most states would require the primary bread-winner (aka Dad in most cases) to give the primary caretaker (aka Mom in most cases) way less financial support. Yet we love to say that custody decisions are made based on the best interest of the children, but instead we apply legal statutes and rulings that have little to do with the actual best interest of the child. How can it be better for children to have their father’s pay less to support their mothers? Whose rights are really considered? While both parents are usually necessary and healthy to a child’s development, stability and a primary parental bond speak loudest in the research.
In 1999, Diane N. Lye, PhD, studied the Washington State Parenting Act and did scholarly research on numerous post-divorce studies to answer the question whether share parenting improved the well-being of children post divorced versus other parenting arrangements. She found that there were a few factors that did affect child well-being, joint custody not being one of them. The important factors were parental conflict, primary parent having adequate income, the functioning of the primary parent and neighborhood quality and moves.
Her finding was that "[T]he evidence reviewed here does not reveal any particular post-divorce residential schedule to be most beneficial for children.
The weight of evidence, bearing in mind both the numbers of studies finding benefits and not finding benefits, as well as the quality of the samples and methods employed, suggests that there are no significant advantages to children of joint physical custody. However, the evidence also does not suggest significant disadvantages to children of joint physical custody, or of any other post-divorce residential schedule."
This paper supports the allegation that each family is different, has differing needs, and should be examined on the weight of many factors. The research cited herein supports the theory that the primary parent standard, and the child’s major parental bond, is their anchor to the world and the child should not be ripped away from the ideal of a stable familiar home to be given a suitcase and treated as chattel. It is my hope that this paper will serve as a vehicle for discussion, for truly asking the question what do children need and what are the obligations and responsibilities parents have towards their children.
I want to thank www.lizlibrary.org for providing leads and research for this project.
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